The Law Commission and The Draft Sentencing Code

6th September 2017

What is the Sentencing Code?

The draft Sentencing Code was published on 27th July 2017. It remains open for public consultation until 26th January 2018. It aims to form the basis for a single sentencing statute that will replace the body of current legislation on the subject.

Why is it needed?

Sentencing law is currently derived from a number of different sources. Often attempts have been made to change the law by simply amending existing statutes. Exceptions and anomalies in old Acts of Parliament sometimes remain in force. A degree of cross-referencing is usually needed if the sentencing position is to be properly understood. This has led to the Commission describing the current situation as lacking “coherence and clarity” and pointing to the “complexity of modern sentencing practice”.

What will it do?

The Code is expected to save public money through speeding up the sentencing process and preventing the need for many appeals against sentence. The Commission claim that they will rewrite the law “in modern language” and that this will improve public confidence in the sentencing system.

What won’t it do?

The Code isn’t designed to alter current maximum sentences. It won’t replace the work of the Sentencing Council in setting Sentencing Guidelines. It won’t create any new minimum sentences or reduce judicial discretion in the sentencing exercise.

Can it help me get out of prison?

The Commission’s work on the subject to date includes an interim report (7th October 2016). This document says –

“The law in this area, as it currently stands, is overwhelmingly complex, and difficult to identify and understand, even for practitioners and judges. It is contained in numerous separate provisions across a multitude of statutes with no consistent structure to aid navigation…

“…the Code will apply to all sentencing exercises in which conviction takes place after its commencement. Limited exceptions to this will be created, including for offences where the penalty now would be more severe than the maximum which could have been imposed at the time of the offence, and offences where new laws on prescribed minimum sentencing and recidivist premiums have come into force after the commission of the offence.” [1.11]

The draft Code describes the current problem in the following terms –

“This complexity means that errors are frequently made when the courts impose a sentence. An analysis conducted in 2012 of 262 randomly selected cases in the Court of Appeal (Criminal Division) demonstrated that the complexity of the legislation resulted in an extraordinary number of sentences that had been wrongfully-passed: there were 95 unlawful sentences in the sample. These were not sentences which were considered to be only of inappropriate severity, i.e. those which the Court of Appeal (Criminal Division) concluded ought to be reduced on the basis they were manifestly excessive or increased on the basis that they were unduly lenient, but cases in which the type(s) of sentence(s) imposed was simply wrong in law.” (Summary [1.10] my emphasis.)

This represents a step forwards in so far as it shines a spotlight on the fallibility of Judges and the frailty of the sentencing process. Any recognition of the fact that things often go wrong is to be welcomed. It’s interesting to note that the survey of unlawful sentences referred to by the Law Commission didn’t include non-Counsel cases before the Court of Appeal. Often these also relate to unlawful sentences where the issue is so obvious that legal argument isn’t needed.

What should I do?

It’s important to appreciate that the Sentencing Code won’t change the law. It simply points out that a lot of people in prison are currently serving unlawful sentences. It highlights the fact that lawyers and Judges weren’t aware of the fact that unlawful sentences were being passed. It recognises the need to do things differently in future.

If you feel that your sentence might be unlawful there’s no benefit in waiting for the Code to come in to force. You may be adding needlessly to the time you serve. You should seek legal advice on the subject immediately.